|
<br />I
<br />
<br />I
<br />
<br />I
<br />
<br />T own of New El /" iqh ton lon inq Co/nm i ssion
<br />Ap/"il 1 G. 19D1
<br />PaCJe Two
<br />
<br />!:~_~_~"dis,~~~lleY,~...:"...~=,!_/,1cJ~?"~~,C3. 27 Ariz. App. 70, 55'1 P. 2ei GO, 81 ALR 2e1 1080
<br />(1976). An accessol-Y Ot" incicJent<l1 use is a use which is dependent on 0'" per
<br />tains to the pr"incipal or main use. Needham v. Winslow Nut"scl"ies, Inc., 330
<br />M;) s s. 95. 11 1 N. [" 2 d lj ') ~ . -,'," -,---'"'-.-'-'---,,---,--..-'"~------.,..,.
<br />
<br />In PaC~..9."~~c~"..Y(]I,l_~y, above, it was stated tile "Appellant is an amateur
<br />radio operator. This is (] hobby through which the 'ham' opel-ator ~F'ins skill in
<br />science, electr-onics and radio technique. It is can"iee! on purely for the develop..
<br />mcnt of the individual and not for any financial gain" Family hobbies, recreation
<br />and education are without question accessory uses customarily incident to sin9le
<br />family dwellings." To the same effect, see also Chatham v. Donaldson, G9 N.J.
<br />Sup. 2 7 7, 2 [i 2 (A P p. D i v. 1 9 G 1 ) . -'-"..--"",.--. '--'-"----,..---..,-",-
<br />
<br />1 n Ski.!2.!.!,,~LY ...1.on i~?oard _of ~-~jus!...~~~~!"~i...!.b.~_I_:_'!EAg1er..!1-.!::!i~IJ 80 N. J .
<br />Super 3BO (App. Div. 1963), the Appelldte Division of the Super'ior Coul"t of New
<br />Jersey held that a 1 DO-foot amateur antenna was a reasonable accessory use to a
<br />residential real pl"opet-ty, where the ordinance limited "buildings to 35 feet, with
<br />exceptions for chul'ch spires, bdfries. , . Chimneys. . . and the like." The
<br />Court noted that it was certainly the intent of the governing body that thel-e were
<br />mechanical apput'tenances that necessarily must be erected and that would be
<br />erected to heights above y'oof level.
<br />
<br />Height limitations, such as the 3D-feet limitation imposed by the City of New
<br />Brighton, severely inhibits amateur communications by decreasing the effective
<br />range of radio transmissions, Further, the closer an antenna is to ground level,
<br />the greater the interfel~ence potential to home entertainment equipment.
<br />
<br />In addition to the st.rong public interest and the long-expressed Federal
<br />interest in promotin~J /\mateul- Padio, there Zlrc le981 considel-ations which, upon
<br />analysis, clearly preclude local l"cgulation of Amateur Radio equipment, including
<br />antennae. The Federal Communications Commission is empowered to regulate the
<br />transmission of signals, pictures, and sounds of all kinds, whether by raclio or
<br />cable, including all instl-urnentalities, facilities, apparatus, and sCI"vices.
<br />Uni~..ed_~tates ':'...:.. Southwe~tet~!2..._Cc:.,~le._Co._, 392 U.S. 157, 1GB (1968).
<br />
<br />It is established that the fedet-al govet-nment has pt"e.empted the field of
<br />radio I"egulation, and a l'estr"iction by a state 01' local government on amateur
<br />antennae is, in effect, a restriction on the operation of a federaffy-licensed in-
<br />stn,Hnentality of interstate commerce. As early as 1912, Congl-ess recognized that
<br />communicat.ion by means of r(]dio en ergy WilS inhen.:'ntly interstate in natLn-e, was
<br />a form of commerce, and was uniquely adaptable to unifonn regulation by the
<br />federal government. Radio Act of 1912; Pub. No. 264, ch. 287, 37 Stat. 302 (1912).
<br />For the early cases dealing with the inherently interstate natul'e of l"adio see:
<br />Federal Radio Commission v. Nelson ~rothers Bond and Mortgage Co. , 289 U.S. 266,
<br />53 S. Ct. 627, 77 L, Ed. 1166 (1933); T e~hnjca.1 Radio Laboratory v. Feder<.!.!J3adi2
<br />Commission_, 36 F. 2d 111 (D.C. Cir. 1929); United States v. Betteridge,_ Ll3 F.
<br />Supp. 53 (N. D. Ohio 191!2); ~~~}te:d States v. A~eric~-.!?.<?_nd and Mortgage Co"
<br />31 F. 2d 14148 (N.D. Ill. 1929), ~hit~h~rst y....:.......0ri!~, 21 F. 2d 787 (E.D. Ky 1927).
<br />
|